Roller v. Wooldridge

• Decision Date: 01 January 1877
• Citation: 46 Tex. 485
• Court: Texas Supreme Court
• Parties: GEORGE ROLLER v. A. P. WOOLDRIDGE, ASSIGNEE, &C.

46 Tex. 485

GEORGE ROLLER

v.A. P. WOOLDRIDGE, ASSIGNEE, &C.

Supreme Court of Texas.

1877.

APPEAL from Freestone. Tried below before the Hon. John B. Rector.

Robert Adams executed his note to George Roller, the appellant, for the sum of $7,000, due one day after date, with six per cent. interest from date, dated in July, 1862.

In 1865, a credit of $1,400 was entered on the note, and on October 15, 1866, Roller brought suit on it, against Adams, in the District Court of Freestone county, for the balance due.

Adams answered, that the note was given for Confederate money, and that the payment he had made on the note, of $1,000, specie, equal to $1,400, currency, had more than paid the note. He asked for judgment for the balance due him, and claimed, also, damages in reconvention, against Roller, to the amount of $10,000, for having brought suit on this note He further pleaded, that, at the maturity of the note, Confederate money was worth twenty for one, but he did not attack the consideration, as illegal.

On November 10, 1866, by written agreement between the attorneys of Roller and Adams, a judgment by default was taken in favor of Roller, against Adams, for $7,000, currency, without interest, for four years, and a stay of execution for that period, with a special lien reserved, by agreement, in favor of Roller, on 1,599 acres of land in Freestone county.

On July 2, 1868, Adams filed an original bill, in the nature of a bill for a new trial, for the purpose of canceling and setting aside the judgment rendered against him. The grounds set up for vacating the judgment and granting a new trial, were, that as the note was given for Confederate money, the whole transaction was tainted with illegality; that the act of November 10, 1866, (Paschal's Dig., art. 7440,) providing for the value of Confederate money to be ascertained and made the basis of judicial proceedings, was null and void, contrary to the Constitution of the United States and to public policy, and that the agreement under which the judgment was rendered was also null and void, and entered into by his attorneys without his knowledge or consent.

Adams also filed the affidavit of one of his attorneys, that he had made the agreement for him without his knowledge, but believing it to be the best course for him.

Roller filed a general and special demurrer to this petition for a new trial. He also filed an answer, setting up, that the judgment was rendered with the full knowledge and consent of Adams; and that he, Adams, had himself drafted its outlines, as it was charged, appeared from a memorandum of Adams, marked Exhibit A, in his handwriting; and that his attorney knew this, and that, in the former suit, he had plead that Confederate money was not worth more than twenty for one, and that he had an opportunity to prove this, but had failed to do so. Roller further alleged that Adams borrowed this money from him to buy, of one Mr. Huckaby, the same land on which the lien was retained in the judgment.

The demurrer of Roller was overruled on the 8th of March, 1869, at which time a bill of exceptions was taken to this action of the court. At the next term, a motion was made to reopen the argument on the demurrer, and, on this reargument, at the February Term, 1870, the former ruling was set aside, the demurrer sustained, and the bill for a new trial dismissed.

From this final judgment, dismissing the bill, Adams having in the meanwhile become a bankrupt, one Standifer sued out a writ of error to this court, pending which he ceased to be assignee, and Rowand was substituted for him, who was succeeded by Wooldridge.

On the 19th of March, 1872, the Supreme Court reversed the case and remanded it for a new trial. (Adams v. Roller, 35 Tex., 711.)

The opinion in that case seems chiefly based upon the idea that the judgment entered by consent was not such a judgment as the attorneys of Adams had the power to enter, and that it was null and void.

On the return of the case to the District Court, Roller moved to dismiss it, which was overruled.

On the 17th of May, 1872, the cause again came up for trial, when, as appears from the appellant's bill of exceptions, the court below having overruled the appellant's motion to dismiss and his demurrers to the petition, refused to allow him a jury in the case, and proceeded to try the bill for a new trial, without one.

The appellant moved for a new trial, which was refused.

On May 17, 1872, the assignee set up, in an amended answer, the defense, that Confederate money was an unlawful consideration for a contract, and to this defense Adams himself came forward and made oath.

There was a trial on the 23d of August, 1872, and a verdict and judgment in favor of Roller. A new trial was granted, and the case again tried December 21, 1872, when, for the third time, a judgment was rendered in favor of Roller, which the court again set aside.

On the 12th of August, 1873, the case was again tried, and a jury gave a verdict against the appellant, on which a judgment was entered dismissing the cause, to correct which the writ of error in this cause was sued out.

Hancock, West & North, for plaintiff in error.--The petition for a new trial, by which Adams sought to escape from the effect of the judgment of November 10, 1866, was manifestly insufficient in its averments for the purposes intended. It charged no fraud or collusion. It showed on its face inexcusable laches and delay on the part of Adams, he not having moved for nearly two years, when he knew of the judgment a few weeks after its rendition. It showed on its face that Adams was justly indebted to Roller for the value of the Confederate money, while he tendered back no money, offered to pay nothing, but sought to defeat the payment of the whole debt by asserting its illegality and denying his liability for any amount. (1 Story's Eq., sec. 64 e.)

The argument of our associate, incorporated in the record, is full and satisfactory on this point. The following authorities show the insufficiency of the petition: Goss v. McClaren, 17 Tex., 107;Vardeman v. Edwards, 21 Tex., 742;Burnley v. Rice, 21 Tex., 180;Steinlein v. Dial, 10 Tex., 268;Gregg v. Bankhead, 22 Tex., 252;Cook v. De la Garza, 13 Tex., 444;Spencer v. Kinnard, 12 Tex., 180;Metzger v. Wendler, 35 Tex., 379;Ragsdale v. Green, 36 Tex., 194;Fisk v. Miller, 20 Tex., 572;Caperton v. Wanslow, 18 Tex., 125; 1 Bac. Ab., title ATTORNEY, letter C, 487-491; 1 Bouvier Law Dic., 140.

The case of Holker v. Parker, 7 Cranch, 436, cited in the former opinion, will be found, on an examination of the facts of the case as set forth, to be inapplicable to the case at bar, and we trust the court will carefully consider the facts in that case. The following authorities are believed to be conclusive in our favor: Dunman v. Hartwell, 9 Tex., 496;Cayce v. Powell, 20 Tex., 767, (a strong case in point;) Storey v. Nichols, 22 Tex., 90;Hopkins v. Donaho, 4 Tex., 337;Pierson v. Burney, 15 Tex., 273;Cartwright v. Roff, 1 Tex., 81;Prewitt v. Perry, 6 Tex., 262;Wheeler v. Pope, 5 Tex., 263;Burton v. Lawrence, 4 Tex., 374;Merritt v. Clow, 2 Tex., 582.^a1

There are other palpable errors, such as the refusal of the court to allow Roller the benefit of a jury. (See the case of Russell v. Miller, MSS. Op., at this term, by Judge Reeves, delivered May 5, 1874, No. 1855, from Houston county, as to refusing a jury when one is demanded.)

But as Adams has become a bankrupt, unless Roller can be protected by his judgment of November 10, 1866, he will lose his debt. This would be a great hardship on him, for it appears from the record that he took the Confederate money, at par, for debts due him; that he loaned it to Adams, and Adams paid the money to Huckaby for the very land on which the judgment is a lien.

If, now, Adams can hold Huckaby's land, and escape the payment of his debt to Roller, he will get his land for nothing. Certainly he has no equity on his side, and does not appear in an enviable light in the record.

Theodore Jones, also for plaintiff in error, on the question of the power of an attorney to consent to a judgment, cited Paxton v. Cobb, 2 La., 140; Cartwright v. Roff, 1 Tex., 81;Burton v. Lawrence, 4 Tex., 373;Prewitt v. Perry, 6 Tex., 262;Burton v. Varnell, 1 Tex., 635. He maintained that the judgment agreed to by the attorney cannot, in the absence of fraud, be impeached by a mere allegation of want of authority in the attorney, his client being estopped, by the judgment of the court, from denying his authority, citing Cannon v. Hemphill, 7 Tex., 184-203;Dunman v. Hartwell, 9 Tex., 495, 496;Cayce v. Powell, 20 Tex., 767;Baxter v. Dear, 24 Tex., 17-21.

Walton, Green & Hill, for defendant in error.--From every definition of the elementary writers, and by the decision of our own court, we must conclude that the judgment first appealed from was a final judgment, as it dismissed the petition and put an end to the suit. (Freeman, sec. 16.)

A reversal, therefore, of such final judgment must be final in its nature, so far as the questions necessary to the decision were passed upon by the appellate court; and all that was left to be done, upon the remanding of the cause to the District Court, was for that court to carry out the judgment of the appellate tribunal; and such a judgment is so potent, that the Supreme Court itself cannot reinvestigate the question decided.

The question here discussed is well stated by Freeman, sec. 267. Speaking of judgments on demurrer, he says, that such a judgment “is conclusive of everything necessarily determined by such judgment;” that such a judgment may be on the merits, and “if so, its effect is as conclusive as though the facts set forth in the complaint were admitted by the parties or established by evidence;” that, as no action could be maintained by the plaintiff on the same facts in case judgment be against him, so, “if any court err in sustaining a demurrer and entering judgment for defendant...